688 F.

2d 716
11 Fed. R. Evid. Serv. 980

German EBANKS, Plaintiff-Appellant,

v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant-Appellee.
Merlin B. PAYMENT, Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant-Appellee.
Vivian Marie SELF, etc., Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant-Appellee.
Oliden P. SALOMAN, Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant-Appellee.
Bobby E. LAURENDINE, Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant-Appellee.
Bobby Joe BASSHAM, Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant-Appellee.
Edward BURKE, Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant
Third Party Plaintiff-Appellee,
Chevron Shipping Co., Third Party Defendant-Appellee.
Gene MOORE, Plaintiff-Appellant,
v.

GREAT LAKES DREDGE & DOCK CO., a corporation,

Defendant
Third Party Plaintiff-Appellee,
Chevron Shipping Co., Third Party Defendant-Appellee.
Henley SMITH, Plaintiff-Appellant,
v.
GREAT LAKES DREDGE & DOCK CO., a corporation,
Defendant
Third Party Plaintiff-Appellee,
Chevron Shipping Co., Third Party Defendant-Appellee.
Nos. 79-2808, 79-3808 to 79-3810.

United States Court of Appeals,

Eleventh Circuit.
Sept. 27, 1982.

Leonard C. Jaques, James F. Finn, Detroit, Mich., for plaintiffs-appellants

in No. 79-2808.
Dewey R. Villareal, Jr., Tampa, Fla., Courtney Wilder Stanton,
Jacksonville, Fla., for defendant-appellee in all cases.
Arthur Roth, Miami, Fla., for plaintiffs-appellants in Nos. 79-3808, 793809 and 79-3810.
Ulmer, Murchison, Ashby & Ball, Jacksonville, Fla., for defendantappellee in Nos. 79-3808 and 79-3810.
Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, Fla., for
defendant-appellee in Nos. 79-3808, 79-3809 and 79-3810.
Before TUTTLE, KRAVITCH and HENDERSON, Circuit Judges.
TUTTLE, Circuit Judge:

The appellants here seek reversal of a district court judgment in favor of Great
Lakes Dredge and Dock Company, their Jones Act employer. Their principal

contention on appeal is that the trial court erred, upon submitting special
interrogatories to the jury in this Jones Act and general maritime law
negligence action, in including a question which required the jury to determine
the comparative degrees of causation between the defendant Great Lakes and a
non-party to the suit, Chevron Transport Company, and Chevron Shipping
Company (Chevron).
2

Briefly stated, the plaintiffs were members of the crew of a dredge and attached
barge, having a length of over 400 feet, which was dredging out the channel of
the St. Johns River a short distance downstream from the Port of Jacksonville,
when the dredge and barge were struck broadside by the 600 foot tanker, The
Robert Watt Miller. The crewmen were thrown into the water when the barge
was overturned by the collision, and one drowned. The plaintiffs below,
alleging a contractual obligation of Great Lakes with the Corps of Engineers to
comply with Corps of Engineers Manual EM 385-1-1, March 1, 1967, General
Safety Requirements 32 CFR 7.602-42, alleged, and produced evidence to
demonstrate a failure to comply with several of the safety requirements in the
manual, including more significantly the failure to have a lookout and the
failure to have a safety skiff available solely for the purpose of "emergencies
and life saving drills," and "kept afloat or ready for instant launching." Other
violations of the manual as to which proof was offered was the failure to give
instructions about abandoning ship or any other safety instructions, or the
requirement that life preservers be kept handy at all times. Several of the
plaintiffs who were thrown into the water were without preservers, including
the crewman who was drowned. Moreover, there was proof from which the
jury could have found that, while it was the duty of the dredge to "straighten
out" entirely on its side of the channel, the stern portion of the barge extended
some 25 feet into that part of the channel which should have been left open for
the ascending traffic. The pilot of the Robert Watts Miller testified that he was
led into the error that caused the collision by virtue of his recognizing that he
had less than a full half of the channel for passing the dredge and barge.

Because of the allegations of unseaworthiness, which they concluded they had

established by undisputed evidence, appellants contend that they made such a
case of negligence and unseaworthiness against their employer, that they were
entitled to a judgment n.o.v. While we do not reach this question, we do
recognize that there was more than sufficient evidence to support the jury's
finding of negligence, and more than sufficient evidence to have supported a
finding of causation of the injury, which resulted when the crewmen all found
themselves trapped on the deck of the barge without life preservers and no skiff
available for escape with the 600 foot tanker bearing down on them.

These appellants had all settled their claims against Chevron, and they filed suit
solely against the owners of the barge on which they worked, as authorized
under the Jones Act. Although Great Lakes filed a third party action against
Chevron, this action was severed for a separate trial, and Chevron was not
before the court as a party or by counsel during the trial in chief. Nevertheless,
after the jury had been sworn, Great Lakes filed a motion with the trial court to
require the jury to make specific findings as to the degree of liability and
causation attributable to Great Lakes and to Chevron. Over the objection of the
plaintiffs, the trial court granted its motion.1

Following a three weeks trial, the case was submitted to the jury on a series of
special interrogatories. These were answered in the following manner:

SPECIAL VERDICT
6We, the jury in the above matter unanimously find as follows:
7

1. Was the defendant Great Lakes Dredge & Dock Company negligent? (Yes)

2. If your answer to No. 1 is "yes", did the negligence contribute to cause injury
to Bobby Joe Bassham? (No)

3. Was the Dredge ALASKA including its attached barge unseaworthy? (No)

10

4. If your answer to No. 3 is "yes", did the unseaworthiness contribute to cause

injury to Bobby Joe Bassham? (Not applicable)

11

5. Was the ROBERT WATT MILLER and/or those responsible for her
navigation negligent? (Yes)

12

6. If your answer to No. 5 is "yes", did the fault of the ROBERT WATT
MILLER and/or those responsible for her navigation contribute to cause injury
to Bobby Joe Bassham? (Yes)

13

7. If your answer to Nos. 2 or 6 are "yes", indicate below the percentage each of
the factors as to which you answered "yes" contributed to the injury of Bobby
Joe Bassham.

(a) Great Lakes negligence ____%

14
(b) ROBERT WATT MILLER negligence (100%)
15

16

8. If your answer to both Nos. 3 and 4 are "yes", is the plaintiff entitled to
punitive and exemplary damages? (Not applicable)

17

Thus, it will be seen that the jury found Great Lakes guilty of negligence but
also found that this negligence in no way caused the injury to the plaintiffs.
These findings by the jury would seem somewhat unusual in light of the fairly
well established deficiencies in the operation and condition of the dredge at the
moment of emergency. It is not so unusual when one considers that the trial
court gave the jury the opportunity to pin 100 percent of the causation on
Chevron, an obviously solvent participant in the tragedy. The same may be said
as to the jury's determination of no unseaworthiness on the part of the dredge,
once they had concluded that there was 100 percent liability and causation to be
laid at the door of Chevron.

18

The appellants contend that it was reversible error for the trial court to inject
the question of comparative degrees of causation as to a non-party, not present
before the court, and therefore unrepresented. This placed a burden upon the
plaintiffs, if they were to make any recovery at all against Great Lakes, to fight
the battle on behalf of the Robert Watt Miller's owners and operators, to lessen
in the jury's mind the degree of causation to be attributed to the tanker.

19

Plaintiff's objection to the injection of the proportionate liability of Chevron is

based on their understanding of what is concededly maritime law: that a
plaintiff may "sue ... all the wrongdoers, or any of them, at his election; and ...
if he did not contribute to the disaster ... to judgment in either case for the full
amount of his loss." The "Atlas," 93 U.S. 302, 23 L.Ed. 863 (1876). The
Supreme Court has reconfirmed this to be the law as recently as the case of
Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753,
61 L.Ed.2d 521 (1979), a case that will be discussed more hereafter.

20

The appellants contend that only the first four questions and the eighth question
should have been submitted to the jury, and the inclusion of questions 5, 6 and
7 as to the causation to be attributed to a non-party were not only confusing, but
were misleading, and also doubled the burden on the plaintiffs, by their having
to show an absence or smaller percentage of negligence on the part of the
Robert Watt Miller in order to obtain any recovery against their employer.

21

The fact that it must have equally been a surprise to the trial court when the
jury answered "no" to the second question was evidenced by its comment when
the jury requested further instructions as to the special verdict form. The jury
wished to know whether, if they answered "no" to either question 2 or 6, they

should enter "100 percent" to the other answer. The court stated: "If they
answer 'yes' to No. 1, defendant Great Lakes Dredge and Dock Company's
negligence, obviously your answer to 2 would probably almost have to be 'yes',
wouldn't it? In other words, did it contribute, you would assume it would; isn't
that right?"
22

Appellees, to the contrary, contend that the position taken by the appellants
amounts to their saying that it was improper for the trial court to hear any
evidence about the acts of the tanker which would tend to exculpate the dredge
from liability. The appellants make no such claim. Of course, they recognize
that it was appropriate for the witnesses for Great Lakes to tell exactly what
happened as the tanker bore down on the dredge and its barge, thus clearly
showing that it was an act of the large vessel that created havoc among the
crew of the dredge. Appellants' position is simply that in a trial between the
crew and their employer, dealing with alleged failures on the part of the dredge
to maintain proper safety precautions, the percentage of the total liability of the
vessel that brought about the condition in which the absence of such safety
precautions became critical was totally irrelevant. We agree. Furthermore, we
conclude that the jury may well have thought it was establishing 100 percent
right of recovery in the plaintiffs against Chevron, since, of course, they knew
nothing of the settlement. They, thus, may have paid little attention to the
subsidiary question whether Great Lakes' negligence contributed to the injuries.
Of course, as all of the participants in the tragic accident were fully aware, the
question of the degree of culpability between Great Lakes and Chevron could
be, and was already in line to be, determined in the third party suit by Great
Lakes against Chevron. Such a proceeding would be fought out between two
parties, each having a sole interest for its own protection-not, as here, with one
of the parties subject to being cast as the total villain without even being
represented before the jury.

23

Appellees contend that the trial court was bound to submit the issue as it did by
the recent Fifth Circuit case, Leger v. Drilling Well Control, Inc., 592 F.2d
1246 (5th Cir. 1979), by which we are bound.2

24

Appellants contend that Leger is not applicable to this situation, because of the
different posture of the parties involved in the two cases and further, they
contend that if it were applicable, it would not be binding, because of a
subsequent decision by the Supreme Court in Edmonds v. Compagnie Generale
Transatlantique, supra.

25

We agree with the appellants, that the posture of the Leger case is quite
different from that before the Court here. Leger sued three defendants as joint

tortfeasors, his employer, Drilling Well Control, Inc. (DWC), Dresser Offshore
Services, Inc. (Dresser), owner of the barge on which the injury occurred and
Continental Oil Co. (Continental), the owner of the offshore oil well where the
injury occurred. On the morning of the trial, Leger settled his claims against
DWC and Continental for a total of $182,331.05. The insurance company paid
him $82,331.05 for his claim against DWC and $100,000 for his claim against
Continental. At the trial, the jury found Leger's damages to be $284,090 before
the trial court or plaintiff's counsel knew anything about the settlement. The
trial court considered it necessary to grant a new trial, except for the amount of
damages, because it thought it necessary for the jury to be aware of the
continuing interest in the lawsuit of the various witnesses from DWC and
Continental, because the insurer was to receive one-half of all sums received by
Leger from Dresser. Then, for the first time, the jury was directed to determine
the comparative negligence of the parties, since the damages remained fixed at
$284,090. Having found Dresser liable for 45 percent, Continental 20 percent,
DWC 0 percent, and Leger 35 percent contributory negligence, Dresser filed a
motion to alter the judgment, requesting the court to afford Dresser a credit
against the judgment for the full dollar amount of the settlement ($182,331.05
between Leger, DWC and Continental). The motion was denied and the court,
in accord with rules which it later spelled out, entered judgment against Dresser
for $127,840. That amount reflects the total damages of $284,090, reduced
by.$99,430.17, representing the 35 percent contributory negligence of the
plaintiff and by $56,817.24, representing 20 percent negligence attributed to
Continental. In other words, Dresser was charged by the judgment to pay only
the portion of the total damages proportionate to its percentage of negligence
(45 percent of $284,090). The rules, announced by the trial judge reaching his
conclusion, were reprinted in the Leger opinion, 592 F.2d at 1248. There, it will
be noted, paragraph 6 as announced by Judge Hunter, the district judge, and
approved by the Court of Appeals, reads as follows:
26A settling party's negligence is considered only when he has been made a party to
6.
the suit. In such a case, the judgment awarded to the claimant against the nonsettling defendant is credited with the dollar amount represented by the
proportionate negligence, if any, attributed to the settling parties.
27

Appellants' first contention is that the Leger method of handling cases in which
one of several joint tortfeasors has settled is inapplicable here, because the
settling party, Chevron, was not a member of this suit. They point to the fact
that the Court of Appeals discussed the case throughout as being one where the
settling party was treated as a party to the suit. Moreover, and more
importantly, the issue which is now before us was not present in Leger. So far
as appears, the injured plaintiff, having obtained his judgment fixing damages

of $284,090 was not heard to object to the second submission of the case to the
jury for a determination of the comparative negligence of the parties. The
appeal was by Dresser, and not by Leger. Thus, the Court of Appeals did not
have before it a case in which the injured plaintiff raised the question as to the
propriety of presenting to the jury upon the initial trial the question of
percentage of liability of several joint tortfeasors. Moreover, the record seems
to indicate that all parties were present and in court to defend their own relative
positions at the time the percentage issue was being presented to the jury. There
was thus no allocation of a percentage of liability (here 100 percent) against a
person not present in court.
28

We also agree that if the mere language of the Leger case could be construed to
authorize the proceedings conducted here by the trial court, then its effect as
precedent has been weakened by Edmonds. Although the Edmonds case dealt
with the amendment of the Longshoremen's and Harbor Worker's
Compensation Act, 33 U.S.C. 901 et seq., enacted by Congress in 1972, and
therefore dealt with the liability of a shipowner vis-Ea-vis a longshoreman and
his employer, the court repeatedly stated and restated the general admiralty law.
The court said:As that law had evolved by 1972, a longshoreman's award in a
suit against a negligent shipowner would be reduced by that portion of the
damages assignable to the longshoreman's own negligence; but as a matter of
maritime tort law, the shipowner would be responsible to the longshoreman in
full for the remainder, even if the stevedore's negligence contributed to the
injuries.7

29See, e.g., Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 108, 113 (94
7.
S.Ct. 2174, 2175, 2178, 40 L.Ed.2d 694) (1974) (longshoreman could have
recovered entire damages from shipowner responsible for 50% of the total fault);
Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 283 (72 S.Ct.
277, 278, 96 L.Ed. 318) (1952) (shipowner responsible for 25% of negligence
required to pay 100% of damages and contribution unavailable from negligent
shoreside contractor, an employer under the Act). See also The Atlas, 93 U.S. 302
(23 L.Ed. 863) (1876); The Juniata, 93 U.S. 337 (23 L.Ed. 930) (1876). We stated
the common-law rule in The Atlas and adopted it as part of admiralty jurisprudence:
"Nothing is more clear than the right of a plaintiff, having suffered such a loss, to
sue in a common-law action all the wrong-doers, or any of them, at his election; and
it is equally clear, that, if he did not contribute to the disaster, he is entitled to a
judgment in either case for the full
amount of his loss."
30
443 U.S. at 260, 99 S.Ct. at 2756.
31

The Court then said:

32

This latter rule is in accord with the common-law, which allows an injured
party to sue a tortfeasor for the full amount of damages for an indivisible injury
that the tortfeasor's negligence was a substantial factor in causing, even if the
concurrent negligence of others contributed to the incident.8

33Restatement (Second) of Torts 433A; 857, and 879 (1965 and 1979); T.
8.
Cooley, Law of Torts 142-144 (1879); W. Prosser, Law of Torts 47, pp. 297-299,
and 52, pp. 314-315 (4th ed. 1971); cf. Washington & Georgetown R. Co. v.
Hickey, 166 U.S. 521, 527 (17 S.Ct. 661, 663, 41 L.Ed. 1101) (1897). A tortfeasor is
not relieved of liability for the entire harm he caused just because another's
negligence was also a factor in effecting the injury. "Nor are the damages against
him diminished." Restatement, supra 879, comment a. Likewise, under traditional
tort law, a plaintiff obtaining a judgment against more than one concurrent tortfeasor
may satisfy it against any one of them. Id. 886. A concurrent tortfeasor generally
may seek contribution from another, id. 886A, but he is not relieved from liability
for the entire damages even when the nondefendant tortfeasor is immune from
liability. Id. 880. These principles, of course, are inapplicable when the injury is
divisible and the causation of each part can be separately assigned to each tortfeasor.
Id. 433A(1) and 881.
443 U.S. at 260, 99 S.Ct. at 2756.
34
35

Finally, in discussing the question of whether the Court should feel free to
change the law in this area, although Congress had not done so in the 1972
amendments, the Court said:

36

Though we recently acknowledged the sound arguments supporting division of

damages between parties before the Court on the basis of their comparative
fault, see United States v. Reliable Transfer Co., 421 U.S. 397 (95 S.Ct. 1708,
44 L.Ed.2d 251) (1975).... 30 (Emphasis added.)

37 As noted in n. 8, supra, the general rule is that a person whose negligence is a

30.
substantial factor in the plaintiff's indivisible injury is entirely liable even if other
factors concurred in causing the injury. Normally, the chosen tortfeasor may seek
contribution from another concurrent tortfeasor. If both are already before the court (Emphasis added). for example, when the plaintiff himself is the concurrent
tortfeasor or when the two tortfeasors are suing each other as in a collision case like
Reliable Transfer -a separate contribution action is unnecessary, and damages are
simply allocated accordingly. But the stevedore is not a party and cannot be made a
party here, so the Reliable Transfer contribution shortcut is inapplicable.

Contribution remedies the unjust enrichment of the concurrent tortfeasor, see Leflar,
Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L. Rev. 130, 136
(1932), and while it may sometimes limit the ultimate loss of the tortfeasor chosen
by the plaintiff, it does not justify allocating more of the loss to the innocent
employee, who was not unjustly enriched. See also H. Hart & A. Sacks, The Legal
Process: Basic Problems in the Making and Application of Law 525 (ten.ed.1958).
Our prior cases recognize that. Even before Reliable Transfer, we apportioned
damages between vessels that collided and sued one another. Reliable Transfer
merely changed the apportionment from equal division to division on the basis of
relative fault. But we did not upset the rule that the plaintiff may recover from one
of the colliding vessels the damage concurrently caused by the negligence of both.
Compare Reliable Transfer Co. (Apportionment of damages on basis of relative fault
between plaintiff and defendant who concurrently caused grounding), and The
Schooner Catharine v. Dickinson, (58 U.S.) 17 How. 170 (15 L.Ed. 233) (1855)
(equal apportionment of damages between libelant and respondent vessels where
both at fault in collision), with The Atlas, 93 U.S. 302 (23 L.Ed. 863) (1876) (in suit
by insurer of cargo against one of two ships whose concurrent fault caused collision,
the insurer is entitled to recover in full, despite the rule of equal apportionment,
because the insurer is not a wrongdoer), and The Juniata, 93 U.S. 337, 340 (23 L.Ed.
930) (1876) (same; if respondent vessel has any rights against nonparty vessel, they
"must be settled in another proceeding").443 U.S. at 271-72, 99 S.Ct. at 2762
(emphasis in original).
38

It takes little imagination to realize the advantage to a plaintiff, such as these

injured seamen were here, if the trial court, after hearing the evidence dealing
with the alleged faults of the dredge, and the evidence of the collision, had
charged the jury in the language of the The "Atlas", supra, as repeated in
footnote 7 above: "If you find negligence on the part of Great Lakes and
negligence on the part of other persons and if you find the injury to the
plaintiffs was caused even partially by the negligence of the defendant, the
plaintiff is entitled to recover the full amount of his damages from this
defendant."

39

Since the plaintiff is entitled to recover, as stated by the Court, against either of
several tortfeasors, without regard to the percentage of fault, it was error for the
trial court to distract the juror's attention by requiring it to allocate the degree of
fault between the defendant and a non-party. If the jury had found the causation
in the negligence which it found against Great Lakes, and Great Lakes
considered that the total amount of damages for the injuries received by these
plaintiffs was disproportionate for it to bear, it could have obtained
contributions against Chevron, as it had already undertaken to do, in a different
proceeding. That issue was to be tried at a different time and between two live

opponents, and not as part of the suit by the injured workman and
representative of a deceased workman against their employer under the Jones
Act.
40

The appellants also complain of charges incorrectly given and denial of a

charge not given by the trial court. We leave these matters open for
consideration first by the trial court upon remand. It is not clear from the
relative representations of the parties to what extent this was a failure of the
plaintiffs to object to the charges given and to what extent their complaint here
is due to their later appreciation of the decision of the Court of Appeals for the
Fifth Circuit in Reyes v. Vantage S.S. Co., 609 F.2d 140, 143 (5th Cir. 1981).
Upon rehearing, this can be cleared up.

41

We also leave to the trial court in the first instance the solution of the question
whether a party who agrees by contract to observe statutes and regulations
which would not otherwise be binding on it is subject to the per se rule for
failure to observe such statutes and regulations. No cases have been cited to us
that resolve this question.

42

In addition, the appellants complain of the refusal of the trial court to admit in
evidence proffered testimony that would tend to show post-accident activities
in the nature of stricter compliance with the engineer's manual. The court held
that this evidence would not be admissible as to the negligence counts although
the trial judge said that if only unseaworthiness claims were before the court,
this evidence could be admitted. The court then ruled out the evidence under
Fed.R.Evid. 403. This Rule provides as follows:

43

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.

44

Whether the trial court was correct in concluding that such post-occurrence
evidence would be admissible as to the unseaworthiness claims, we do not
decide, because this determination would depend upon a much more careful
analysis of that evidence than is contained in the briefs of the parties. However,
we note that Rule 403 is to be very sparingly used for the purpose of ruling out
otherwise relevant evidence. As stated by Weinstein:Since the trial judge is
granted such a powerful tool by Rule 403, he must take special care to use it
sparingly.... If there is doubt about the existence of unfair prejudice, confusion
of issues, misleading, undue delay or waste of time, it is generally better

practice to admit the evidence taking necessary precautions by way of

contemporaneous instructions to the jury followed by additional admonition in
the charge....
45

Vol. I, Weinstein & Burger, Weinstein's Evidence, 403(01).

46

This is in accord with the rule applicable in this circuit. See Collins, By and
Through Kay v. Seaboard Coast Line R. R. Co., 675 F.2d 1185 (11th Cir.
1982). If the trial court, on remand, decides that this evidence is admissible on
the unseaworthiness claim, then it should not be ruled out merely because it is
not applicable to the negligence claim. That fact can be made known to the jury
by proper charge limiting the jury's consideration of it.

47

The judgment is REVERSED and the case is REMANDED to the district court
for further proceedings not inconsistent with this opinion.

Since the motion was not included in the pre-trial stipulation as to issues to be
tried, the trial court offered the plaintiffs the opportunity to take a mistrial. In
the alternative, the plaintiffs asked the trial court to certify that issue for an
interlocutory appeal, but when this was denied, plaintiffs elected to proceed
with the trial

See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981)